*In just the last 10 days two different courts have taken completely different approaches to Point of Sale (POS) terminals commonly used for self checkout lines. In the more recent decision, National Federation of the Blind, Inc. v. Wal-Mart Associates, Inc. 2021 WL 4750521 (D. Md. Oct. 12, 2021) a carefully reasoned opinion rejects the notion that because these devices require assistance in selecting a cash back amount they violate Title III of the ADA. A much briefer opinion issued a week earlier reached the opposite conclusion. Dalton v. Kwik Trip, Inc. 2021 WL 4554362 (D. Minn. Oct. 5, 2021). The cases are the latest in a line of cases concerning touch-screen POS terminals that goes back at least as far as 2014’s New v. Lucky Brand Dungarees Stores, Inc., 51 F. Supp. 3d 1284 (S.D. Fla. 2014).¹ These cases raise, but do not resolve important issues concerning the ADA, technology, and regulation. More
ADA Point of Sale
Covid-19, sneeze guards, social distancing signs and the ADA
I’ve gotten two emails from John Garra at Square One Architecture¹ with papers on different aspects of physical accessibility and Covid-19 that frankly had not occurred to me. The first dealt with sneeze guards that have been put up at most sales counters may, and frequently do infringe on the space required for those with disabilities to access the counter. The second concerned the signs being used to space out folks waiting in line or to block access to seating. These are not readable by the blind, who therefore can’t tell where seating or standing is appropriate. I think these are the first non-mask related Covid-19 item I’ve seen.
Sales counters are a frequent source of ADA complaints and litigation, usually because they are not low enough, not wide enough, or cluttered with point-of-sale displays. Adding a sneeze guard that isn’t carefully designed can easily create problems that didn’t exist before. Garra also points out that the reason sales counters have a maximum height is that wheelchair users are sitting at a height lower than almost all standing users. That means the portion of a sneeze guard that is open for passing receipts or goods may be a just the face level of a wheelchair user, making the sneeze guard less effective or ineffective.
I’ll share any additional insights that Garra sends me, but once you begin looking at public spaces in terms of accessibility it isn’t hard to imagine other unintended consequences of Covid-19 protection. Restaurants that have eliminated tables in order to create greater social distance might easily have eliminated accessible seating without thinking about why some tables are differently configured. Sneeze guards aren’t just a problem at counters. The picture above shows a sneeze guard that makes a booth inaccessible for a person in a wheelchair. The focus on masks as a problematic requirement for those with breathing disabilities may cause us to overlook the problem presented for deaf individuals who rely on lip reading when a clerk or server is wearing a mask.
There are, as Garra points out, many resources on accessibility available online from the U.S. Access Board,² the federal agency with general responsibility for accessibility standards. I would add this suggestion for businesses that want to both avoid litigation and better serve customers with disabilities. Just take a few minutes to walk through your business imagining you are in a wheelchair and see what barriers might exist because of Covid-19 precautions or for any other cause. Think as well about the experience of a blind customer or a deaf customer. The technical standards can be daunting, but in most cases the problems are easy to identify and understand with a little imagination.
¹You can contact John at john@sq-1.net if you want more information. His website is Square One Architecture.
² https://www.access-board.gov
Quick Hits – What the courts are doing edition . . .
Although you wouldn’t know it from watching the news many of the 677 federal judges in the U.S. are working on cases that don’t deal with how to count votes. Here’s a look at what they’ve been up to.
Eleventh Amendment abrogation for ADA claims
In Natl. Assn. of the Deaf v. Fla., 2020 WL 6575040 (11th Cir. Nov. 10, 2020) the Eleventh Circuit held that Congress validly abrogated 11th Amendment immunity with respect to the State of Florida’s legislature, a holding that may eventually lead to a requirement that public legislative sessions be made accessible to those with hearing disabilities. The arguments are too complex for a Quick Hits blog, but it is notable that the Court found that Congress had the power to abrogate state immunity even when no fundamental right is at issue. The case seems destined for a newly constituted Supreme Court, so stay tuned. More
Browsewrap could tame the ADA website litigation monster.
In the last two years the federal courts have had a number of opportunities to find that Title III claims under the ADA are not arbitrable and have declined the invitation. That doesn’t mean these cases are in fact going to arbitration. In every case I found the arbitration agreement was found to be unenforceable on state law grounds, leaving open the possibility of a public policy argument. Nonetheless, I think that a properly written and implemented arbitration clause can force a Title III case into arbitration and give defendants a chance to avoid much of the unnecessary cost of litigation. Here’s why.
The starting point in a discussion of arbitration for civil rights statutes has to be Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647 (1991). In Gilmer the Supreme Court found that claims under the Age Discrimination in Employment Act could be made subject to a valid arbitration agreement, rejecting claims that it was somehow inconsistent with public policy. A few months later Congress passed the Civil Rights Act of 1991, in which, among other things, it affirmed that More
Quick Hits – First pre-Christmas Edition
If you’re not all in, you need to get out quickly. That seems to be a theme that runs through many of this week’s roundup of recent decisions. As we will see several times below, ADA lawsuits generally require a decision to surrender or fight to the death at the beginning of the case. Anything usually results in money wasted on attorneys’ fees. That said, defendants continue to succeed in some cases, justifying a close look at the particular court and its history before making a decision on how to proceed. More